548 F.3d 1264 (9th Cir. 2008), 06-35644, Witt v. Department of Air Force

Docket Nº:06-35644.
Citation:548 F.3d 1264
Party Name:Margaret WITT, Major, Plaintiff-Appellant, v. DEPARTMENT OF The AIR FORCE; Robert M. Gates, Secretary of Defense; [*] Michael B. Donley, Secretary, Department of the Air Force; [**] Mary L. Walker, Colonel, Commander, 446th Aeromedical Evacuation Squadron, McChord AFB, Defendants-Appellees.
Case Date:December 04, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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548 F.3d 1264 (9th Cir. 2008)

Margaret WITT, Major, Plaintiff-Appellant,


DEPARTMENT OF The AIR FORCE; Robert M. Gates, Secretary of Defense; [*] Michael B. Donley, Secretary, Department of the Air Force; [**] Mary L. Walker, Colonel, Commander, 446th Aeromedical Evacuation Squadron, McChord AFB, Defendants-Appellees.

No. 06-35644.

United States Court of Appeals, Ninth Circuit

December 4, 2008

Aaron H. Caplan, Loyola Law School, Los Angeles, CA, James E. Lobsenz, Nichole D. McCraw, Carney Badley Spellman, PS, Sarah A. Dunne, Esq., ACLU of Washington, Seattle, WA, for Plaintiff-Appellant.

Jonathan F. Cohn, Peter J. Phipps, DOJ - U.S. Department of Justice, Washington, DC, Marion J. Mittet, Office of the U.S. Attorney, Seattle, WA, Anthony J. Steinmeyer, Lowell V. Sturgill, Jr., Henry Charles Whitaker, DOJ - U.S. Department of Justice, Washington, DC, for Defendants-Appellees.

D.C. No. CV-06-05195-RBL, Western District of Washington, Tacoma.

Before: WILLIAM C. CANBY, Senior Circuit Judge, SUSAN P. GRABER, and RONALD M. GOULD, Circuit Judges.

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Order; Dissent by Judge O'SCANNLAIN; Dissent by Judge KLEINFELD; Dissent by Judge KOZINSKI.


The panel voted to deny the Appellees' Petition for Rehearing.

The full court has been advised of the Petition for Rehearing En Banc. A judge of the court requested a vote on whether to rehear the case en banc. However, the en banc call failed to receive a majority of votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The Appellees' Petition for Rehearing and the Petition for Rehearing En Banc are DENIED.

O'SCANNLAIN, Circuit Judge, dissenting from the denial of rehearing en banc, joined by BEA, M. SMITH, JR., and N.R. SMITH, Circuit Judges:

This is the first case in which a federal appellate court has allowed a member of the armed services to bring a substantive due process challenge to the congressionally enacted “ Don't Ask, Don't Tell" homosexual personnel policy for the military. With respect, I believe that our three-judge panel has erroneously reversed a district court order dismissing such suit and remanded for further fact-finding under an unsanctioned and malleable standard of review.

This case is far more than a harmless remand. Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir.2008), claims to rest its decision on the Supreme Court's opinion in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), which decriminalized private and consensual homosexual conduct. Instead, however, Witt contravenes Supreme Court precedent, including Lawrence, in the area of substantive due process, creates a circuit split, and stretches the judicial power beyond its constitutional mandate. At the end of the day, Witt creates a forum in the judicial branch (rather than the political branches) to challenge the validity and the particular application of “ Don't Ask, Don't Tell," even though such policy infringes no constitutional right. Since today's order denies rehearing of this problematic case by an en banc court, I must respectfully dissent.



Unlike Lawrence, this is not a criminal case. Major Margaret Witt, an Air Force reservist nurse, was suspended from the Air Force when a military board found, after a two-day hearing, that she “ had engaged in homosexual acts and had stated that she was a homosexual in violation of [10 U.S.C. § 654, commonly known as the ‘ Don't Ask, Don't Tell’ policy]." 1 Witt, 527 F.3d at 810. The military board recommended her discharge and the Secretary of the Air Force has so ordered, but it is unclear whether she has been formally discharged. See id. at 812. Major Witt admitted that she had “ a committed and

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long-term relationship" with “ another woman from July 1997 through August 2003." Id. at 809. As the panel noted, “ Major Witt's partner was never a member nor a civilian employee of any branch of the armed forces, and Major Witt states that she never had sexual relations while on duty or while on the grounds of any Air Force base." Id. The two women lived together in Spokane, Washington, some 250 miles from the base where Major Witt was stationed. Id. at 809-10. Major Witt challenged her termination as a violation of her constitutional rights under the Equal Protection Clause, the procedural Due Process Clause, and the substantive Due Process Clause. Id. at 809. The district court granted the Air Force's motion to dismiss Major Witt's lawsuit. Id.


On appeal, a panel of this court upheld the dismissal of both the procedural due process claim and the equal protection claim, the former on standing grounds and the latter on the merits. However, the Witt panel went on to hold that there might be a viable substantive due process claim based on Lawrence and remanded the case back to the district court “ to develop the record." Id. at 821. Although previous Ninth Circuit decisions had found “ Don't Ask, Don't Tell" constitutional under rational basis review, see, e.g., Philips v. Perry, 106 F.3d 1420, 1425-26 (9th Cir.1997), the panel presumed, without any analysis or explanation, that Lawrence changed the equation.

After careful but, I respectfully submit, misguided consideration, the panel concluded that Lawrence introduced a new requirement of some kind of heightened scrutiny. The Lawrence opinion itself does not prescribe such scrutiny or even mention that it applied heightened scrutiny of any kind. Lacking a standard of review, the panel imported a multi-factor balancing test from another Supreme Court case, Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003), that it thought enunciated a standard of review appropriate to Lawrence. In Sell, a case involving the government's forcible administration of anti-psychotic drugs to a mentally ill defendant, the Court did develop a four-factor test, but only on the basis of prior cases with similar facts . See 539 U.S. at 179-181, 123 S.Ct. 2174 (deriving a standard from Washington v. Harper, 494 U.S. 210, 213, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990), which considered “ whether a judicial hearing is required before the State may treat a mentally ill prisoner with anti-psychotic drugs against his will" and Riggins v. Nevada, 504 U.S. 127, 135-37, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992), which reversed State convictions because the defendant was unconstitutionally forced to take an anti-psychotic drug during trial). The Sell Court explicitly tied its test to those cases where the government had “ involuntarily ... administer[ed] antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial." Id. at 179, 123 S.Ct. 2174.2

Notwithstanding the inapposite origin of the Sell test, the Witt panel adapted it to its own purposes. In Witt 's modified version, the inquiry requires “ that when the

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government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence, 3 the government must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest.... In addition, we hold that this heightened scrutiny analysis is as-applied rather than facial." Witt, 527 F.3d at 819.4

Applying this novel standard, the panel remanded for further fact-finding to determine whether “ Don't Ask, Don't Tell" met the requirements of the modified Sell test with respect to Major Witt's particular circumstances. The Witt opinion leaves no doubt about how fact-specific this inquiry is to be. The panel ordered the trial court on remand to determine “ whether the application of [‘ Don't Ask, Don't Tell’ ] specifically to Major Witt significantly furthers the government's interest and whether less intrusive means would achieve substantially the government's interest." Id. at 821 (emphasis added). Witt remains the only federal appellate decision to subject “ Don't Ask, Don't Tell" to such invasive review.5 It seems to me that if a court of appeals is to require a district court to second-guess the considered policy decision of Congress as applied to a particular military officer, it must do so with the clearest constitutional command and upon the most solid Supreme Court precedent. But, as I explain below, no such clarity, no such solidity, underlie Witt.


My first objection to Witt is to its application of Lawrence in the first place. The panel presumed, without any analysis, that Lawrence controlled this case. The Witt court thought that its first task with respect to the substantive due process claim was to “ determine the proper level of scrutiny to apply." Id. at 813.6 In other words, the panel ignored the necessary threshold question: “ is this a Lawrence case at all?" Its assumption-that Witt is a Lawrence case-was wrong, and that mistake caused the panel both to misapply Lawrence and to contradict the well-settled substantive due process precedents of the Supreme Court.


In Lawrence, the Supreme Court struck down a Texas criminal statute penalizing certain homosexual conduct. It overruled Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), which upheld a similar Georgia law under the rational basis test. Citing “ broad statements of the substantive reach of liberty under the Due Process Clause [of the Fourteenth Amendment] in earlier cases," Lawrence, 539 U.S. at 565, 123 S.Ct. 2472,

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the Court began by summarizing its objection to statutes criminalizing the consensual sexual activity at issue:

Their penalties and purposes ... touch[ ] upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes ... seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is...

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